# C_2019187EN.01004201.xml

| 3.6.2019 | EN | Official Journal of the European Union | C 187/42 |
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3.6.2019

EN

Official Journal of the European Union

C 187/42

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Request for a preliminary ruling from the Landesgericht Wiener Neustadt (Austria) lodged on 13 March 2019 — YS v NK

(Case C-223/19)

(2019/C 187/46)

Language of the case: German

Referring court

Landesgericht Wiener Neustadt

Parties to the main proceedings

Applicant: YS

Defendant: NK

Questions referred

| 1. | Does the scope of Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, (1) and/or of Directive 2006/54/EC of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, (2) include legislation of a Member State if the effect of that legislation is that the former employer is to withhold sums of money from a considerably higher proportion of men entitled to an occupational pension than from women entitled to an occupational pension when those occupational pensions are paid out and those sums may be freely used by the former employer, and are such provisions discriminatory within the meaning of those directives? |
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1.

Does the scope of Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, (1) and/or of Directive 2006/54/EC of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, (2) include legislation of a Member State if the effect of that legislation is that the former employer is to withhold sums of money from a considerably higher proportion of men entitled to an occupational pension than from women entitled to an occupational pension when those occupational pensions are paid out and those sums may be freely used by the former employer, and are such provisions discriminatory within the meaning of those directives?

| 2. | Does the scope of Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (3) include legislation of a Member State that discriminates on the ground of age because the financial burden is borne exclusively by older people who are entitled under private law to the benefits of an occupational pension that was agreed as a direct defined benefit pension, whereas young and relatively young people who have entered into occupational pension contracts are not financially burdened? |
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2.

Does the scope of Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (3) include legislation of a Member State that discriminates on the ground of age because the financial burden is borne exclusively by older people who are entitled under private law to the benefits of an occupational pension that was agreed as a direct defined benefit pension, whereas young and relatively young people who have entered into occupational pension contracts are not financially burdened?

| 3. | Are the provisions of the Charter of Fundamental Rights (‘the Charter’), in particular the prohibitions of discrimination laid down in Articles 20 and 21 of the Charter, to be applied to occupational pensions even if the Member State’s legislation does not cover forms of discrimination as prohibited pursuant to Directive 79/7/EEC, Directive 2000/78/EC and Directive 2006/54/EC? |
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3.

Are the provisions of the Charter of Fundamental Rights (‘the Charter’), in particular the prohibitions of discrimination laid down in Articles 20 and 21 of the Charter, to be applied to occupational pensions even if the Member State’s legislation does not cover forms of discrimination as prohibited pursuant to Directive 79/7/EEC, Directive 2000/78/EC and Directive 2006/54/EC?

| 4. | Is Article 20 et seq. of the Charter to be interpreted as precluding legislation of a Member State that implements Union law within the meaning of Article 51 of the Charter and that discriminates, on grounds of sex, age, property or on other grounds, such as, for example, on the basis of the former employer’s current ownership, against persons entitled under private law to an occupational pension as compared with other persons entitled to an occupational pension, and does the Charter prohibit such forms of discrimination? |
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4.

Is Article 20 et seq. of the Charter to be interpreted as precluding legislation of a Member State that implements Union law within the meaning of Article 51 of the Charter and that discriminates, on grounds of sex, age, property or on other grounds, such as, for example, on the basis of the former employer’s current ownership, against persons entitled under private law to an occupational pension as compared with other persons entitled to an occupational pension, and does the Charter prohibit such forms of discrimination?

| 5. | Are national rules that place only a small group of people who are contractually entitled to an occupational pension in the form of a direct defined benefit pension under an obligation to make financial payments to their former employer also discriminatory on the basis of property within the meaning of Article 21 of the Charter if they cover only people with relatively large occupational pensions? |
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5.

Are national rules that place only a small group of people who are contractually entitled to an occupational pension in the form of a direct defined benefit pension under an obligation to make financial payments to their former employer also discriminatory on the basis of property within the meaning of Article 21 of the Charter if they cover only people with relatively large occupational pensions?

| 6. | Is Article 17 of the Charter to be interpreted as precluding legislation of a Member State that provides for expropriatory intervention, directly by law and without compensation, in an agreement relating to an occupational pension in the form of a direct defined benefit pension entered into between two private parties to the detriment of a former employee of a company that has made provision for the payment of the occupational pension and is not experiencing financial difficulties? |
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6.

Is Article 17 of the Charter to be interpreted as precluding legislation of a Member State that provides for expropriatory intervention, directly by law and without compensation, in an agreement relating to an occupational pension in the form of a direct defined benefit pension entered into between two private parties to the detriment of a former employee of a company that has made provision for the payment of the occupational pension and is not experiencing financial difficulties?

| 7. | Does a statutory obligation on the part of the former employer of a person entitled to an occupational pension not to pay out parts of the agreed remuneration (of the agreed occupational pension) represent, as an infringement of freedom of contract, an interference with the employer’s right to property? |
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7.

Does a statutory obligation on the part of the former employer of a person entitled to an occupational pension not to pay out parts of the agreed remuneration (of the agreed occupational pension) represent, as an infringement of freedom of contract, an interference with the employer’s right to property?

| 8. | Is Article 47 of the Charter to be interpreted as precluding legislation of a Member State that expropriates directly by law and makes no provision for any challenge to the expropriation other than by way of a claim against the beneficiary of the expropriation (the former employer and the debtor under the pension contract) for damages and reimbursement of the expropriated sum of money? |
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8.

Is Article 47 of the Charter to be interpreted as precluding legislation of a Member State that expropriates directly by law and makes no provision for any challenge to the expropriation other than by way of a claim against the beneficiary of the expropriation (the former employer and the debtor under the pension contract) for damages and reimbursement of the expropriated sum of money?

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(1)  OJ 1979 L 6, p. 24.

(2)  OJ 2006 L 204, p. 23.

(3)  OJ 2000 L 303, p. 16.

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